By TIOL News Service

AHMEDABAD, NOV 07, 2014: THIS is a Revenue appeal against the order passed by Commissioner of Central Excise Ahmedabad-II dropping the allegations leveled in the show cause notice.

The primary ground taken by the Revenue is that adjudicating authority has only commented on the aspect of what ought to have been done by the investigation rather than appreciating the evidences available on record.

The AR further submitted that the Respondents have confessed to the clandestine activity and that retractions made in the form of an affidavit were never received by the Revenue;therefore, the order of the adjudicating authority should be set aside and the appeals be allowed.

The respondent submitted that in the Cross objections they had raised the preliminary objection that the appeals filed by the Revenue are not maintainable as the competent Committee of Chief Commissioners signing the authorization is not the Committee as constituted by the Central Government in terms of Notification No.24/2005-CE(NT), dt.13.05.2005. The case was also argued on merits with the help of various case laws to support the view taken by the adjudicating authority.

The CESTAT inter alia observed -

++ As per Notification No.24/2005-CE(NT) dt.13.05.2005 for Ahmedabad Central Excise Commissionerates, Ministry has constituted a committee of two Chief Commissioners. As per this notification, the competent committee consists of Chief Commissioner of Central Excise, Ahmedabad and Chief Commissioner of Customs, Ahmedabad to review the orders passed by CCE Ahmedabad-I, II, III, Bhavnagar & Rajkot Commissionerates.

++ The present Review Order No.R-02/2008, dt.08.01.2007 has been signed by Chief Commissioner of Central Excise, Ahmedabad and Chief Commissioner of Central Excise, Vadodara. As per the constitution of committees under Notification No.24/2005-CE(NT) Chief Commissioner of Central Excise, Vadodara had no jurisdiction to sign such review order dt.08.01.2007 as he is not a part of the notified Review Committee for Ahmedabad-II Commissionerate.

++ When this preliminary objection was raised on 19.11.2012 by the Advocate of the Respondents during hearing, A.R. sought time to satisfy the preliminary objection but no evidence is produced by the Department that on the date of signing the Review authorization Chief Commissioner of Central Excise, Vadodara was also holding additional charge of Chief Commissioner Central Excise, Ahmedabad.

++ Further, both the Chief Commissioners have signed the authorization on different dates, which means that Committee as such has not met on a single day . On this issue the case laws CST Vs L.R. Sharma & Co. 2013-TIOL-944-CESTAT-DEL and CCE Vs Honda Motorcycles & Scooters India P. Ltd 2014-TIOL-83-CESTAT-DEL have already decided the issue in favour of the assessee.

++ Appeals filed by Revenue on the basis of an invalid Review authorization deserve to be dismissed as not maintainable, on this ground alone, without further going into the merits of these proceedings.

The Revenue appeals were rejected as non-maintainable and the cross objections filed by the Respondents were allowed by upholding the Order-in-Original passed by the adjudicating authority.

(See 2014-TIOL-2194-CESTAT-AHM)